7.14.2009

I had no idea posting the video of John Ridpath's talk about Patrick Henry would incite such a debate, but it did. For five days, a blogger named Uttles and I have been debating, sometimes contentiously, the merits of the Constitution and the motives of the men who wrote it.

I think it has been a very interesting exchange of ideas, and so I'm going to reproduce it here so it doesn't languish in the obscurity of buried comments. With some parts of the comments redacted -- where we sniped at each other a bit -- here are the (perhaps ongoing) C. August vs. Uttles debates.

[Update: see Part 2 of these debates]Uttles said...7/9/09 5:28 PMPatrick Henry is my hero. I watched this speech and I don't think it did Henry justice. Yes, it did tell about a lot of the great things he did, but it didn't focus on the great things he's not recognized for. The passage of the Bill of Rights is wholly due to Henry, this is true, but the constitution is still a flawed document that has allowed such things as the Sherman Act, The Federal Reserve Act, the Income Tax Amendment, etc, etc, etc. The constitution did not go far enough to protect individual rights and Henry knew it. He gave a great many speeches before, during, and after the Virginia ratification convention outlining the many reasons that the constitution was itself anti-federal, and why it destroyed individual rights. The great tragedy of our time is that we all think the constitution instituted liberty when in fact it destroyed it.

C. August said... 7/10/09 1:11 PMYour statement about the Constitution has me wondering if you're not evaluating it in the correct historical and philosophical context. You said that people "think the constitution instituted liberty when in fact it destroyed it," but that statement is based on what I think are some major misconceptions. In my view, that notion ignores the facts of reality and the state of knowledge of the foundation and source of individual rights that the Founders had.

As Peikoff said, to paraphrase, America was founded with an amazingly good political system, but built on a wobbly foundation.

The Founders looked to the natural rights thought of Locke and others, who based their theory of natural rights on their supposed "god-given" existence. So they held an implicit individual rights-respecting philosophy in their politics, but explicitly advocated Christian altruism as the ideal. These contradictions -- ones that weren't resolved until Ayn Rand just 50 years ago -- also showed up in the Constitution.

You can't on one hand laud the Founders for establishing the first moral society and government on earth which sprouted unprecedented freedom and prosperity for generations, and on the other hand fault them for not having knowledge which wouldn't be available for another 200 years. Their accomplishments, Henry's and the rest, were the pinnacle of human achievement at the time. For that they deserve the justice of our deep appreciation.

Their contradictions and the insidious forces of anti-life philosophies proceeded to erode the wobbly base upon which the Founders built the political protections of our liberties, to the point where today they are under great peril. But their ideas and the government they created were vulnerable precisely because they lacked the knowledge that wouldn't come for 200 years.

I agree that this seems tragic... it was so close, so agonizingly close, and the success that did happen was a testament to how close to being right they were. But now we have the knowledge, and it's time to work to fully reclaim the liberties that Henry fought for.

All I'm saying, to sum up, is that we owe the Founders their due, including for the creation of the Constitution and Bill of Rights, but because we are armed with greater knowledge due to Ayn Rand's works, we can identify and fix the problems they couldn't solve.

Uttles said... 7/11/09 12:00 AMFirst off, let me say that I do not have the time to study this enough to be considered an expert, but about 6 months ago I did read the Federalist Papers, the Anti-Federalist Papers, and Son of Thunder (about Patrick Henry - my favorite anti-federalist.) It was at that time that I drew my conclusions about the Constitution.

Having said that:

You can't on one hand laud the Founders for establishing the first moral society and government on earth which sprouted unprecedented freedom and prosperity for generations, and on the other hand fault them for not having knowledge which wouldn't be available for another 200 years.

I disagree with this. The founders clearly had the knowledge or the Declaration of Independence wouldn't have been written the way it was. Sure, they didn't identify it as Objectivism and yes they did make reference to a creator but more importantly they identified our rights as natural, inseparable from our lives.

My theory on the chain of events is this: The new found wealth of the gentry class in the colonies was in jeopardy with the crown issuing more and more edicts governing trade, culminating in the stamp act. The ruling elite (who were not capitalists by any means, they were the pull peddlers and pull profiteers using the might of the British governors to their advantage) were fine with that silly college boy Jefferson writing the Declaration of Independence because they had seen in the reactions of the people to "Common Sense" how that language got the regular folks all fired up and ready to fight, but when the war went on for years and the colonists actually won it the reality struck them that they were now faced with a country full of individualists who wanted to have complete control of their lives. This would mean that their most dreaded enemy, an able competitor free of the shackles of government, could take them down.

So a compromise was made. Instead of constructing a government for the sole purpose of protecting individual rights (as the Declaration states so succinctly) they decided to allow each one of the states full sovereignty so that they could in fact govern their people however they wanted to. This is when the Articles of Confederation were instituted. Those articles contained no language whatsoever about individual rights.

It then became apparent that the large monied interests in certain states were not able to effectively control their customers in other states. This was mainly the banks vs the farmers as the banks were using currency manipulation to put the farmers into a state of perpetual indentured servitude (kind of like how everyone in America is now an indentured servant to the government.) So then, they invented a crisis here and a crisis there along with imagined foreign crises to scare the people into amending the original Articles. Never let a good crisis go to waste, right?

Only they didn't amend the Articles. As is what happens in any compromise situation, evil always wins. They came back to the table and pulled a bait and switch. Neither Jefferson nor Henry were able to make it to the new convention, so they had little barriers for their new plan: centralized power completely overruling the state governments and having no specific protections of individual rights: The US Constitution.

To see what I'm talking about in all of its obvious glory, just look at these two intros:

"When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

and

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

Now, can you honestly say the constitution was created to protect our individual rights? I say it was created to erode them. Why else would they have had to add 10 amendments to the thing to outline certain rights that the people should have? Because they didn't want the people to actually have them, but they had to get Patrick Henry to shut up somehow, so they "let" us have a few derivative rights, but not the natural rights of free men.

C. August said... 7/14/09 6:38 AMI have read arguments from both the Federalist and Anti-Federalist (Democratic Republican) sides, and I generally come down on the latter's side of the debate. However, as I have said before, they all suffered under a lack of knowledge of the metaphysical grounding of rights, of the understanding that rational egoism is the only valid and just moral system, and even of the science of economics and that laissez-faire capitalism is the proper political and economic system. Even Jefferson employed mercantilistic policies against the British, restraining trade and thus violating individual American's rights. This is because they didn't fully grasp the contradictions between their explicit (altruism) and implicit (egoism) moral codes.

Where you see some sort of grand plan by the authors of the Constitution (and apparently all the states that ratified it?) to actively destroy the liberties that they had all just fought a long and horrific war to secure, I see honest mistakes and a general context of knowledge that lacked certain fundamentals.

Philosophy and ideas shape history, and we're seeing today the failure of the culture to continue progressing from the contradictions present in the founding era, towards the full, proud embrace of rational egoism. Now that we know, because of Ayn Rand, the proper philosophical foundation for rights and what political system fully protects them, we can pursue it to secure those rights. But pointing to the difference between the Declaration and the Constitution and asserting that everyone should have grasped the true nature of individual rights by reading the Declaration is absurd. It took Ayn Rand, 200 years later, to figure that all out.

Uttles said... 7/14/09 10:17 AMYour entire argument rests on the notion that the founders had nothing but good intentions and the only reason they didn't explicitly define and protect individual rights in the constitution is that they didn't understand objectivist philosophy and its ramifications.

To me, that argument is clearly false. Obviously they hadn't discovered Objectivism (I wish they had) but they had discovered the importance of individual rights, as well as the consequences. Evidence of this exists in the writings of the day, from Paine to Henry to Jefferson and on. There were many invocations of individual rights throughout the prominent pamphlets and essays of the time, including Brutus, the anonymous Farmer, etc.

So for some reason, the members of the convention that created the constitution decided to omit any such declaration or definition of individual rights (despite Jefferson's great work on the Declaration.) It is not factually correct to say they omitted this because of ignorance. So then why did they?

Look at the circumstances of the individuals who created the constitution and you will see.

Also remember that many scare tactics were used to get states to ratify the constitution, including threats of revolts, indian attacks, British reprisals, etc, etc. Also remember that it wasn't a vote of the individuals within a state that was required for ratification, and that the individuals in each state were represented by those who were voted in by a strictly limited electorate.

Again I am not sure of the mechanisms of this process... conspiracy, fear, lack of conviction, political expediency, debt pressures... I don't know. I doubt much written history of anything negative on the part of the Founders would have been allowed to survive this long anyway - history is written by the winners. The point is that the result, the product of the founders, tells you everything you need to know. The constitution had to be amended immediately to include the slightest notion of individual rights, a patronizingly short list of derivative rights from life, liberty, and property, and this is a tragedy that mere ignorance could not have afforded.

C. August said... 7/14/09 11:14 AMI understand what you're saying, and you make good points about the conflicting pressures the founders had to address. I'd also add the concern they had in looking at how the ancients fared in creating their governments: they did not want to repeat the mistakes of the Greek city states, or of the Roman republic. And, they were concerned with the very real threat from Europe.

In this situation, the framers of the Constitution set out to figure out how to construct a government that would unite the states which were essentially at economic war with one another, and that would "secure the blessings of liberty." In that context, they held the moral truths of individual rights as self-evident, which means that they didn't need to be fleshed out... they were obvious and everyone agreed on them. Obviously, they were wrong.

They also operated under conflicting moral codes. I think you are simply not giving enough credit to this crucial fact. That is the "wobbly base" I mentioned earlier, and you'll see where I got that idea in the following quote.

Leonard Peikoff wrote, in the Ominous Parallels (p 118, end of Ch. 5):

Such was the American conflict: an impassioned politics presupposing one kind of ethics, within a cultural atmosphere professing the sublimity of an opposite kind of ethics.

The signs of the conflict and of the toll it was to exact from the distinctively American political approach were evident at the beginning. They were evident in Jefferson's proposal for free public education; in Paine's advocacy of a number of governmental welfare functions; in Franklin's view that an individual has no right to his "superfluous" property, which the public may dispose of as it chooses, "whenever the Welfare of the Publick shall demand such Disposition"; etc....

Philosophically, America was born a profound anomaly: a solid political structure erected on a tottering base.

The Founding Fathers did not know that the era in which they lived and fought and planned was on the threshold of yielding to its antipode. They did not know that they had snatched a country from the jaws of history at the last possible moment. They did not know that, even as they struggles to bring the new nation into existence, its philosophic gravediggers were already at work, cashing in on the period's contradictions: in the very decade in which the Founding Fathers were publishing their momentous documents, Kant was publishing his.

Symbolically, this is America's philosophical conflict, running through all the years of its subsequent history. The conflict is: the Declaration of Independence, with everything it presupposes, against the Critique of Pure Reason, with everything to which it leads.

You may be right that some of the framers of the Constitution had bad intentions -- and here, I can only assume that you have Hamilton fixed in your mind as one of the villains -- but I think even Hamilton actually believed what he was doing was right. And in the absence of a better argument than "rights come from God and are unalienable," there was little more than a conflict of opinions.

Even had they asked Patrick Henry to write the Constitution with a full enumeration of rights, just like we might hope to have, the seeds of philosophical destruction were already sown in the wider culture. Because they could not ground individual rights in their proper metaphysical base and recognize egoism as the proper morality for man, they were vulnerable to attack. A better Constitution may have warded off the decline a bit longer, but that document in itself could not have protected the culture as a whole.

History has shown that calling individual rights self-evident is not a proper defense of them against their philosophic enemies. That "tottering base" is the cause, and we're now dealing with the effects.

12 comments:

This is an interesting debate. I have to confess that I feel somewhat unarmed because I don't have the depth of knowledge that either of you seem to have on the subject. My books lean more toward the technical manuals (SQL Server and the like).

That said, I don't think we can ignore the contexts of the Declaration of Independence and the Constitution themselves.

I've always viewed the Declaration as being more informal than the Constitution -- I mean aside from the obvious (that it's not actual law). I'm talking about the context here. The Declaration was, in essence, a very pointed letter to a specific person (King George); a person who clearly did not understand the concept of individual rights. The language in it was so explicit because it had to explain exactly why the colonies had the right to shed themselves of an oppressive government. And it was explaining this to the oppressor. It therefore needed to be very explicit.

The Constitution's primary role was to establish the structure of the U.S. government. I do have to say that it seems strange that individual rights are not enumerated in the Constitution itself, but before drawing the conclusion that this was intentional, I think there are other places to look for an explanation. It seems unlikely that after such a big and important war, any of the people involved in that war would allow the things they fought for to be omitted. I can think of a few possibilities:

Perhaps the writers thought that these rights should be enumerated in the constitutions of the individual states (which were, at the time, the more practical & effective governments)?

Perhaps the writers thought that these rights were indeed "self-evident", and therefore were unnecessary to mention in a country that had just won a war fighting for those very rights?

Perhaps they were all old and tired, thought everyone in the country pretty much understood these rights, and just wanted to get this thing ratified so they could go home? :-)

Seriously, I'm very interested in this debate. I'd like to see what other possibilities there would be for an explanation of this apparent omission. While I believe it is unlikely that individual rights were intentionally suppressed from the Constitution, I think it's possible. I'd like to iterate through the reasoning to figure this out.

I think the "self evident" part is the crux of the whole issue. I tend to think (without enough evidence, making this thought non-objective, unfortunately) that it was intentional. It's my intuition that the pull peddlers of the time were more interested in securing their power than securing individual rights.

However I could be very wrong about that. Brendan brings up a good point that the Declaration was so explicit because of its audience, and the constitution was implicit because of its audience. The real tragedy is that for whatever reason the implicit protection was left as the only protection.

As we have seen in the last few generations, that implicit definition has been completely eroded into nothing. Now people say that the most important part of the preamble is the "public welfare" and the courts dealing with constitutional law back that up.

RT: Do you have any references? That sounds familiar, but I can't recall any specifics.

Brendan: I don't know the answer to your question, but I suspect it was 1) because they considered the question self-evident, and 2) were more concerned with how to create a functioning government in response to real fears of warring between the states.

In the interim, I'll provide one more quote from Dr. Peikoff in The Ominous Parallels from a bit earlier in Ch. 5 (p. 104):

The Founding Fathers were thinkers but not philosophic innovators. They took their basic ideas from European intellectuals, they assumed with the rest of their age that these ideas were now incontestable and even self-evident, and they turned their attention to the urgent task of implementing these ideas in the realm of practical affairs.

As RT pointed out -- adding to the list in the earlier Peikoff quote -- even the best of the Founders held fundamentally contradictory ideas. And yet, they came up with the best political system the world has seen in spite of their contradictions. Unfortunately, they had no philosophic defense against the coming Age of Unreason.

Interesting debate. Uttles sounds too much like a libertarian to me and this of course means minimizing or excluding philosophical fundamentals and substituting philosophy with conspiracy theories. I agree with C. August, the Founding Fathers were philosophically flawed and the US Constitution reflects that. But here I think it is important to not engage in "hatred of the good for not being perfect."

The next set of Founding Fathers (whenever they will exist) will have the benefit of Ayn Rand (something our FFs didn't have the advantage of). The next America, therefore, might have a chance at real longevity.

I found some good historical quotes and notes in "Miracle at Philadelphia." This book details the debates during the summer of 1787, including quotations from all the members of the Convention and other relevant items from the press and other quarters. The following quotes are from Catherine Drinker Bowen’s book in the chapter about the rejection of a Bill of Rights (Ch. 21, pp 244-248):

-----------When the Constitution was published in the newspapers… and the Antifederalists gathered their strength for opposition, nothing created such an uproar as the lack of a bill of rights. What had the Convention been think of, to neglect a matter so elementary, so much a part of the heritage of free people?

The Convention’s stand, however, was reasonable, if mistake. No delegate had been against such rights. Merely they considered the Constitution covered the matter as it stood. And when… Pinckney and Gerry moved for a declaration “that the livery of the press should be inviolably observed,” Roger Sherman said at once it was unnecessary; the power of Congress did not extend to the press. Seven to four the states again voted no.

There is a fascination in reading the delegates’ later defense of their position. To Alexander Hamilton a bill of rights was more than unnecessary. It would be dangerous, he said. “Why declare that things shall not be done which there is no power [in Congress] to do?” Hamilton argued that bills of rights originally were stipulations between kings and their subjects, like Magna Carta, which was “obtained by the barons, sword in hand, from King John.” Whereas in the American government the people, having surrendered nothing and retained everything, have no need of particular reservations.-----------

So here we see it put forth that the specific rights need not be enumerated because it was assumed that the Constitution was a strict bound for action that Congress could take, and nothing more. All rights not mentioned were held by individuals. This is essentially the argument given in the 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Constitution was, in their mind, almost a boring list of instructions for creating the forms of government, and did not require more grand statements that, as Hamilton said, “would sound much better in a treatise of ethics than in a constitution of government.” Further quoting Bowen:

-----------The new Constitution in [James] Wilson’s view was not a body of fundamental law which would require a statement of natural rights. Rather it was municipal law, positive law… Not a declaration of eternal rights but a code for reference.

Quite evidently the Federal Convention looked on its work as practical, everyday business; all along they had avoided high-flown phrases about the rights of man. Such rights, John Dickinson was to argue… “must be preserved by soundness of sense on honesty of hears.” Compared with these qualities, what, he demanded, are bills of rights? “Do we want to be reminded that the sun enlightens, warms, invigorates, and cheers” or how horrid it would be, to have his blessed beams intercepted, by our being thrust into mines or dungeons” Liberty is the sun of society, and Rights are the beams.”-----------

Liberty is like the sun, and Rights follow naturally as beams of sunshine. They are in the very air, these men said, so why should we list them? The Constitution only describes the very few things that the government may do, and nothing else.

That being said, others did see something insidious afoot, or were prescient about the slow creeping of tyranny.

-----------In Portland, Maine, a printer name Thomas Wait… maintained “there was a certain darkness, duplicity and studies ambiguity of expression running through the whole Constitution which renders a bill of rights peculiarly necessary. As it now stands, but very few individuals do or ever will understand it, consequently Congress will be its own interpreter.”-----------

To this, Bowen says that arguments like this were only responses to ideas that were too new, and “minds offended by novelty are apt to complain of darkness or ambiguity in matters not yet digested.” Of course, we know that Wait was unfortunately very correct.

One of Patrick Henry’s fellow Virginians provides a good conclusion to this investigation. As Bowen writes:

-----------With charity and much perceptive good sense, Richard Henry Lee of Virginia, a congressman—no member of the Convention and fiercely anti-Constitutionalist—excused the Convention’s fault concerning a bill of rights. Lee said that when men have long and early understood certain matters as the common concerns of the country, they are apt to suppose these things are understood by others and need not be expressed. … The framers looked upon the Constitution as a bill of rights in itself; all its provisions were for a free people and a people responsible. Why, therefore, enumerate the things that Congress must not do?-----------

In the end, they all thought that individual rights were as plain as the nose on your face, and the culture was such that it was inconceivable that there could come a time when the government would not protect them. Americans had made it out of Plato’s cave. Who in their right mind would go back in?

Of course they were wrong, but also, they simply lacked the knowledge to better ground the theory of individual rights in reality. Ayn Rand said (paraphrasing and recalling from memory… if anyone can find a reference please let me know) that she could not have developed her philosophy without the example of the Industrial Revolution. I take this to mean that seeing the example of near free market capitalism helped concretize the value of liberty that previous philosophers were only able to vaguely imagine.

So I come back to my initial assessment that the Founders accomplished something amazing and they deserve our thanks for the amount of freedom and prosperity their works afforded us. But now, armed with more complete knowledge, we need to carry on the fight if we are to fully secure our liberties.

C.Aug: The background was Virginia, rather than the Federal government. Patrick Henry was in favor of tax-based support for the church (which was quite routine at one time). Jefferson wanted Virginia to pass a religious-freedom bill.

Here's a quote. I believe it was taken from a letter written by Jefferson to Madison, but googling only turned up secondary sources. Playing on Henry's famous "give me...death", Jefferson wrote the following tongue-in-cheek remark:

"While Mr. Henry lives, another bad constitution would be formed, and saddled forever on us. What we have to do I think is devoutly pray for his death."

"The great tragedy of our time is that we all think the constitution instituted liberty when in fact it destroyed it."

This is a bizarre claim. Liberty did not exist before the constitution. That was the entire reason for the Declaration of Independence from England. Because liberty didn't exist. It wasn't protected. To suggest that it did and the constitution somehow destroyed that liberty is a claim in complete opposition to the facts.